Opinion
A151236
12-12-2017
In re LILA A. et al., Persons Coming Under the Juvenile Court Law. DEL NORTE COUNTY DEPARTMENT OF HEALTH & SOCIAL SERVICES, Plaintiff and Respondent, v. CINDY A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. Nos. JVSQ 16-6002, JVSQ 16-6003)
Cindy A., the mother of five-year-old Lila A. and two-year-old Joel A., appeals from juvenile court orders terminating her parental rights and ordering adoption as the permanent plan pursuant to Welfare and Institutions Code section 366.26. She contends the orders must be reversed because the court's adoptability finding is not supported by substantial evidence, and that the court, instead of terminating her parental rights, should have identified adoption as the permanent placement goal and continued the hearing for six months pursuant to section 366.26, subdivision (c)(3). We reject her arguments and affirm the juvenile court's orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
These dependency proceedings were commenced in January 2016, when Lila was nearly four years old and Joel was eleven months old. The Del Norte County Department of Health and Human Services (Agency) removed the two children from Cindy's custody at that time and filed section 300 petitions concerning them, stemming from Cindy's arrest on charges of felony physical child abuse of her daughter (Pen. Code, § 273d, subd. (a)), for which Cindy was later convicted and incarcerated for a four-year prison term. We previously denied Cindy's petition for writ of mandamus challenging the juvenile court's order terminating reunification services for her and setting the section 366.26 hearing. (Cindy A. v. Superior Court of Del Norte County (Nov. 1, 2016, A149310).) The children's father, incarcerated in Idaho, did not challenge the termination of his reunification services.
While proceedings in the juvenile court were stayed pending our consideration of Cindy's writ petition, the Agency, on October 27, 2016, filed an application to administer psychotropic medication to Lila, citing symptoms of "[u]nknown duration, at least from before 5 months ago when [she] was placed in foster care," including hitting herself and her brother, poor sleep, nightmares and bedwetting. Her psychiatrist stated in the application that Lila had "gradually improved in the foster home" but still had continued problems with "impulsivity" that were not improving with therapy and case management. Cindy objected to the medication request because the proposed medication, Guanfacine, wasn't approved for a child of Lila's age, and the matter was continued a number of times in order to secure additional information from Lila's psychiatrist about its proposed, off-label use. By December, though, her doctor reported "Lila has worsened since visits with biological mother started. She has been having worse temper tantrums that last longer. She is breaking things at home, hitting others, urinating on the floor and her toys, once she put a noose around her neck and around her toy's neck, hitting & kicking the family pet . . . ." The doctor warned against further delay in approving her medication. Eventually, on December 19, the juvenile court approved the medication request out of concern Lila was rapidly decompensating. At one of the hearings, it also was brought to the court's attention that Lila had a serious eye condition that would necessitate surgery. Lila's counsel assured the court he would follow up with the Agency to make sure Lila received appropriate treatment.
One of her eyes was dominant and the other was turning inwards, cross-eyed, which risked blindness in the dominant eye if not treated. Lila's brother had had the same condition surgically corrected.
Four months after the juvenile court approved Lila's psychotropic medication, and several weeks before the permanency planning hearing, the Agency filed a request on April 7, 2017, for approval of a second psychotropic medication for Lila, called Methylphenidate. By this time, her psychiatrist was reporting that Lila's condition had improved. She reportedly was now stable, having benefitted from being put on Guanfacine, and was no longer experiencing impulsivity, anger, nightmares or difficulty sleeping. She did continue to have difficulty with inattention and concentration, however, as well as hyperactivity which the second medication was intended to address. Her psychiatrist by this point had diagnosed her with attention deficit disorder (ADHD), post-traumatic stress disorder (PTSD) and reactive attachment disorder.
The record does not reflect a ruling on this second medication request, which was initially set for hearing on the same date as the section 366.26 hearing but later re-calendared for a hearing on June 5, 2017.
The section 366.26 hearing took place several weeks later, on May 1, 2017, after our remittitur in the writ proceedings had issued. By then, Lila was five years old and Joel was two.
Ten days before the hearing, on April 21, the children were removed from the foster home where they had lived for approximately a year because their foster mother decided she was unable to adopt them, and they were moved to a new foster home with a married couple who wanted to adopt them. It was Lila's fifth placement since she had been detained, and Joel's third.
The Agency's report. The Agency signed and filed its status report for the hearing on April 27, six days after the children's move. The children by then had had sporadic visits with Cindy, which had ended with their mother's incarceration, and none were reported with their father who also was in prison. In addition, Cindy had called the Agency twice to inquire about the children and communicated her preference that they be placed in a legal guardianship rather than placed for adoption. The Agency recommended terminating both parents' parental rights and selecting adoption as the children's permanent plan, by their current foster parents.
According to the Agency, five-year-old Lila was healthy and "has had no reportable illness or injury," and was developmentally on track for her age. She was attending preschool and doing well, learning how to play with peers without hitting, and doing "great" academically, loving to write her name, letters and numbers and wanting to learn more. Nevertheless, the Agency reported that Lila had been in more foster care placements than her brother by that juncture due to behaviors the foster homes had struggled with, including biting, kicking, wetting herself intentionally, and refusing to listen. Lila was receiving weekly counseling from a therapist at an entity called "Remi Vista" where, according to her case plan, she was working on "anger issues and behaviors with her younger sibling." She also was seeing a rehabilitation specialist and, in addition, was on psychiatric medications for her behavior and seen on a regular basis by her psychiatrist. Her case plan also stated she would attend "all scheduled optometrist appointments in San Francisco and will follow the treatment plan for her eyes."
The Agency's report also alluded to the several hearings that had taken place earlier concerning Lila's medications, albeit without specifics apart from the continuances and the need to secure additional information from her doctor.
Two-year-old Joel also was reportedly healthy, with no reportable illnesses or injuries, and he had been assessed and found eligible for early head start program services which he attended daily for three hours. On some days, though, he had to be picked up early from school "due to behavior issues." He was receiving counseling from the same counselor as his sister, and had been in only two prior placements; his first had lasted approximately five months before his foster family relocated to another area.
The Agency also had made arrangements for the children to receive unspecified social services assistance in the home, but their previous foster parent with whom they had lived for the past year had refused in-home services for the children.
The remainder of the Agency's report focused principally on the children's current caregivers, a married couple with no children of their own who reportedly were "committed to adopting the children and provid[ing] them with a safe and stable home and family." Both work at Pelican Bay State Prison, the husband as a law enforcement officer and the wife as a licensed vocational nurse. They had been married for 18 years, the husband was 40 years old, and the wife, 37, and the couple has extended family in Del Norte County which is where they both grew up. They have no criminal history, and no prior child welfare history.
According to the Agency, "[t]he prospective adoptive parents realize that the children have some behavior issues but are more than willing to learn ways to be able to work with them so they mature into successful adults." The Agency reported that the couple was "able to meet the [children's] special needs," explaining that they were willing and able to have in-home assistance to help them, had already participated in a "Child Family Team meeting," were aware of the children's medical and psychiatric appointments, and were "more than willing to make sure the children receive the necessary services." The Agency was working to ensure that all necessary services were in place to assist the couple to learn how to work with the children's behavior issues, and the Agency considered the children to be adoptable.
According to the Agency, six days into their new placement, the children "are still adjusting . . . but appear to be doing okay as of the writing of this report." They moved to their new home after two visits with the prospective adoptive parents, and "appear to be happy and are settling into a new routine." Five days after their move, Lila rode a school bus for the first time and reportedly "did great" and enjoyed it. Whereas Joel, for his part, had been unable to stay at preschool for more than a couple of hours during his previous placement due to behavior issues, he had successfully stayed at preschool every day since his move to the new foster home. The Agency reported that although it had been only a week, "the prospective adoptive parents have made a connection with the children and are committed to ensuring they get all the services necessary" to help the children and, ultimately, to adopt them.
The state adoptions assessment. Attached to the Agency's report was an adoption assessment prepared by the Adoptions Services Bureau of the California Department of Social Services (DSS). It had been prepared on April 24, three days after the children's move. Like the Agency, DSS concluded, after "a thorough assessment," that the children are adoptable and recommended the termination of parental rights.
The children had been referred to DSS for an adoption assessment eight months earlier, on August 26, 2016.
The assessment was based upon a joint review with the Agency; observations of the children during a visit to the potential adoptive parents' home on April 19, two days before the children began living there; interviews with the potential adoptive parents; and a review of all available medical, psychological and school records for the children.
Like the Agency, DSS reported that Lila was "on track" developmentally. DSS described her as intelligent and eager to learn at school, and reported she was working on not hitting her peers at school. She reportedly "does better in school when she is able to keep on a schedule and does not have changes in her home environment."
The adoption assessment also provided additional details about Lila's mental health. DSS reported that Lila had been diagnosed with PTSD, ADHD, and reactive attachment disorder. According to DSS, "she has experienced a lot of instability and abuse in her young life prior to the dependency," and could exhibit aggressive behaviors toward her brother as a result, including pushing and hitting him. "She appears to seek her brother's attention by antagonizing him until she gets a negative, physical response from him." She was receiving treatment for her behavior issues both through weekly counseling sessions and with the help of her rehabilitation aide.
According to DSS, Joel appeared to be behind in language development, was enrolled in a local head start program that had dismissed him early on several occasions for biting other children, and was getting treatment at a local social services center for behavior concerns such as head-banging.
The state adoptions worker reported that she "has not yet observed the children beginning to show signs of attaching to the potential adoptive parents" because she had visited the children in the new home only once, two days before the children had moved in.
Like the Agency, though, DSS reported that the new caregivers were committed to adopting the children even though the placement was only a week old. And DSS's preliminary assessment was that they were suitable adoptive parents. Among other things, "In the past week, they have demonstrated good parenting practices with these children, are eager to learn from the children's service providers and appear capable of advocating for their needs in the DHHS and legal system." It noted that the couple appeared capable of meeting all of the children's needs, and wanted to provide them adequate food, clothing, shelter, medical care and security. The assessment also noted that the two children "are beginning to form a secure and affectionate relationship" with the couple, that a "secure and stable parental relationship is in the process of developing," and that removing the children from the current home would be seriously detrimental to the children. Lila, in particular, it noted had experienced extensive trauma in her young life, yet was beginning to develop a relationship with the couple. The couple, it reported, "appear capable of being able to meet all of the needs of the children and they want to be advocates for [the children] in every area of their lives."
The hearing. The section 366.26 hearing took place, as noted, ten days after Lila and Joel moved to their new foster home.
At the outset, Cindy's counsel expressly rested without putting on any evidence, commenting only that, "She certainly would not want them to be adopted. But if guardianship is possible that's what she'd want. But I'm not in a position to put on evidence."
The children's counsel expressed "a little bit of concern" about what would happen if the current placement didn't work out and parental rights had been terminated, and the court asked the Agency's counsel to respond. "[G]iven the fairly recent happening," the Agency's counsel recommended the court order a permanent plan of adoption without terminating parental rights, and then "[w]e set a hearing in six months, come back and finalize the adoption[, o]r if placement does not work out we could convert it to a guardianship." At that juncture, Cindy's counsel added briefly: "That sounds reasonable."
The juvenile court then asked for an update about the children, and was focused in particular on their prior placement and whether the children could bond easily. "I do know if they are able to bond," the court observed, "the likelihood of being able to bond again is good."
In response to the court's inquiry, the Agency's social worker confirmed that the children are capable of bonding. As she described it, "The children do have a bond with the foster mother, probably Joel more than Lila. The only thing Lila said when they had to move was that Grandma doesn't want me any more so I have to move to another home. But she can attach. But I think it takes a little bit for her to attach." She reported that Lila "responds well to the foster parent when she says you need to stop and listen." As for Joel, she noted he bonded "quickly" with the new foster father, and that when she saw Joel the previous week it was the first time she'd ever seen him "laugh[] and laugh[]." "I've never seen him laugh the whole time I've known him," she told the court.
The Agency's social worker also updated the court concerning some of the mental health services the children were receiving. She told the court the children have a rehabilitation specialist in school to help with their behavior issues, and the specialist recently increased her hours so she could work in the home with the children's new foster parents. The social worker contrasted that with the children's former foster parent, who was older than the current ones and whose "problem," the social worker said, was that she didn't want anyone coming into her home to help her. "She was always stressed and thought we were picking on her when we wanted to put someone in the house to help her with behaviors." "These people are younger and eager to go." And the social worker told the court they were "willing to take any and all help we could give them."
Concerned about how difficult it might be for the children to get adopted if this placement fell through, the juvenile court then asked for further input from the state adoptions worker from DSS who then testified under oath.
The adoption specialist, who had eight years of experience, ultimately opined that she didn't believe there was any reason why the children shouldn't be adopted. Never in her career had a foster parent relinquished a child so close to the permanency planning hearing, and so she and her supervisor seriously considered recommending a plan of adoption without terminating rights. But ultimately she recommended terminating parental rights and moving forward with the adoption.
She testified the children had "day-to-day behavioral issues" that some of their previous foster parents had found "challenging." And she acknowledged that their behavioral issues "could" impact whether people might want to adopt them. For example, Lila has a tendency to get jealous, and she gets violent toward her brother, "meaning pushing him, [and] trying to get him away from whatever item he wants." She testified Joel has had "some biting issues" in school which sometimes were related to very specific issues. Yet Joel could not yet form complete sentences, and so she was hopeful some of his behavioral issues would change as he became better able to communicate.
The adoption specialist also provided additional details about Lila's emotional and behavioral issues. She testified that Lila's reactive attachment disorder meant that, as a result of having been severely abused, Lila has trouble attaching to people, including forming bonds in a new foster care placement. Although Lila struggles with bonding, the adoptions specialist testified that she had observed positive interactions between Lila and her current foster mother. Lila was affectionate, showed eye contact, sits with her on the couch and seeks hugs, which were positive signs that Lila could in fact bond. Asked whether she observed these behaviors with the current foster placement, she implied that "observation" was perhaps too strong a word given the short timeframe: "I wouldn't say I've observed it with the current foster placement. I met with the children twice since they've been in that home. I think they're just getting to know where things are in the home . . . they're just getting to know the rules of the home and interacting with the foster parents. It's only been a week and half . . . ." Nevertheless, the adoption specialist testified she has worked with "lots" of children with reactive attachment disorder and Lila was the most affectionate of them all, and "[s]o I think there's a lot of room to work with her and the current foster parents." She also stressed that she took very seriously the need to get as many support services in the home for Lila as possible, because the more placements Lila endured "the more damage" the child would experience. And, she testified that Lila's behavior had escalated the previous year when Lila was having visitations with Cindy, which were "kind of the tipping point" for Lila and necessitated medication, and that there had been or recently would be a change in her medication that's "gone through the court." She predicted Lila's behavior might improve as a result.
The adoption specialist also saw marked contrasts between the children's last placement and their current caregivers. Their former foster mother had not been very consistent with the children, which was "chilling" for a child such as Lila with reactive attachment disorder. "For example, I would hear her tell the children, you can't do that, don't do that. Then she'd hand it to them, whatever it was they were trying to get. There wasn't a lot of consistency in the sense of discipline and routine. I don't know that the supervision in the home was as good as what we would have wanted." The children's current foster mother, by contrast, exhibited "a real ability to manage because of her profession," and the adoptions specialist also observed "a consistency and a peace in the home that I think the children are going to do very well in." The children's former foster mother also was single, older and had other children in her home which was a "strain" on her, whereas the children's current foster parents are married with no other children, which was important because it enabled them to focus completely on Lila and Joel. The former foster parent worked outside of the home until two o'clock whereas the current foster parents' work schedules enabled one of them to be home and available for the children at all times. And, "critical[ly]," the children's former foster mother wasn't willing to accept any support services for the children in her home, whereas the children's new caregivers understood the importance of in-home services and were willing to receive them.
She also testified that the children's behavior was not the only reason the former foster parent had relinquished them. She believed it was "a combination of her personality, her abilities and the children's behaviors." The former foster mother also had some family issues out of the area, and "[s]he said I just can't have people in my home. I feel overwhelmed by state services."
The adoption worker had a feeling the children would do well in their current home, and also believed the Agency was doing all it could to get services into the home to make the placement successful. She testified the children would continue to have counseling after an adoption and, although not certain, she believed there also would still be funding available for their behavioral aides.
Although she couldn't say after only a week and a half that the children's current placement would last, she testified the current foster parents have "a lot of potential." "I thought the previous placement would last," she explained, "and sometimes things come up in people's lives that we can't foresee. But I do think that they're arranging their lives in ways that show they're being realistic about parenting."
Asked whether, if the current placement did not work out it would be due to the fact the children are difficult to adopt, she responded that "I think it would take a skilled parent," and explained it might become necessary in that situation to look outside of the area for a "skilled home" among the pool of parents who would qualify. She also testified that she's worked with many children who were the victims of physical abuse and that her office does "a lot of" adoptions for children with "similar issues," including children with a history of multiple placements, reactive attachment disorder and PTSD.
She couldn't say whether there are other families interested in adopting Lila and Joel because they didn't look beyond this particular family, which they were able to find within 10 to 15 days.
After the state adoptions worker testified, the Agency's counsel abandoned his initial suggestion of setting a hearing in six months rather than terminating parental rights. Instead, he asked the court to terminate parental rights immediately, and Cindy's counsel neither objected nor expressly asked the court to do otherwise. We quote that colloquy in full:
"[AGENCY'S COUNSEL]: Well, I think that on the issue that we did bring up, the court knows as well as I do the statutory preference is for adoption with termination of parental rights. [¶] But 366.23(c)(3) does have sort of an escape clause if we find these children are difficult to adopt. And I think that's the only issue if we find they're difficult to adopt then we should use that and not terminate parental rights. [¶] But it sounds like this placement was found for these children fairly quickly after the previous prospective adoptive parent decided she was no longer going to go through with it. So either we got lucky or these children aren't difficult to adopt after all. The department proposes we terminate parental rights and go forward with a plan of adoption. [¶] . . . [¶]
"[CHILDREN'S COUNSEL:] Your Honor, listening to [the state adoptions worker] assuages some of my concern. I do know in some cases perhaps even if there's some issue that might prohibit kids who are generally adoptable. The prospective adoptive parent here who ended up adopting the kids, it's usually considered evidence they are adoptable, which seems to be the case. [¶] It sounds like there might have been issues with the former foster parent as far as the interaction with the kids. In cases where parental rights [are] terminated there's always a chance the children will end up legal orphans. They just found prospective adoptive parents quickly.
"[CINDY'S COUNSEL:] I think since they are now prospective, adoption would follow subdivision (f) of 366.26. I forget the subdivision. [The Agency's counsel] stated that it might be more prudent the court at this time [sic], simply because the parents have not had these children that long and Lila does show lots of problems for someone so young."
Father's counsel joined in these comments.
The juvenile court then found by clear and convincing evidence the children were likely to be adopted, terminated the parental rights of Cindy and the children's father, and referred the children to the state department of adoptions. The court scheduled a further hearing in 180 days for post-permanency review.
This timely appeal followed.
DISCUSSION
Section 366.26 of the Welfare and Institutions Code directs the juvenile court, at the permanency planning hearing, to make findings and orders in the following order of preference:
We omit those provisions pertinent only to dependent children who are subject to the Indian Child Welfare Act, because Cindy's children are not.
"(1) Terminate the rights of the parent or parents and order that the child be placed for adoption and, upon the filing of a petition for adoption in the juvenile court, order that a hearing be set. . . . [¶] . . . [¶]
"(3) Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue.
"(4) On making a finding under paragraph (3) of subdivision (c), identify adoption . . . as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.
"(5) Appoint a nonrelative legal guardian for the child and order that letters of guardianship issue.
"(6) Order that the child be permanently placed with a fit and willing relative, subject to the periodic review of the juvenile court under Section 366.3.
"(7) Order that the child remain in foster care, subject to the conditions described in paragraph (4) of subdivision (c) and the periodic review of the juvenile court under Section 366.3." (§ 366.26, subd. (b), italics added.)
The statute directs that, "In choosing among the above alternatives the court shall proceed pursuant to subdivision (c)." (§ 366.26, subd. (b).)
Section 366.26, subdivision (c)(1), in turn, directs the court to terminate parental rights if it finds, by clear and convincing evidence, it is likely the child will be adopted absent certain exceptions not at issue here. (§ 366.26, subd. (c)(1).)
Section 366.26, subdivision (c)(3) specifies the mechanism for the juvenile court to identify adoption as the permanent plan without terminating parental rights. It provides that the juvenile court "may" do so, and order that for a period not to exceed 180 days, efforts be made to find an appropriate adoptive family, "[i]f the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent . . . ." (§ 366.26, subd. (c)(3).)
In full, section 366.26, subdivision (c)(3) states: "If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and, without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days. During this 180-day period, the public agency responsible for seeking adoptive parents for each child shall, to the extent possible, ask each child who is 10 years of age or older to identify any individuals, other than the child's siblings, who are important to the child, in order to identify potential adoptive parents. The public agency may ask any other child to provide that information, as appropriate. During the 180-day period, the public agency shall, to the extent possible, contact other private and public adoption agencies regarding the availability of the child for adoption. During the 180-day period, the public agency shall conduct the search for adoptive parents in the same manner as prescribed for children in Sections 8708 and 8709 of the Family Code. At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1), (2), (3), (5), or (6) of subdivision (b). For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child's membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is seven years of age or older."
Here, Cindy's principal argument is that the juvenile court erred in terminating her parental rights because the evidence was insufficient to support the court's findings the children were adoptable. Instead, she says, the juvenile court should not have terminated her parental rights but, rather, specified adoption as the permanent plan and put the matter over for six months, under subdivision (c)(3) of section 366.26. We disagree with both contentions.
I.
The Trial Court's Finding the Children Are Adoptable Is Supported
by Substantial Evidence.
"Once reunification services are ordered terminated, the focus shifts to the needs of dependent children for permanency and stability. [Citation.] A section 366.26 hearing is designed to protect these children's compelling rights to have a placement that is stable, permanent, and allows the caretaker to make a full emotional commitment to the child." (In re A.A. (2008) 167 Cal.App.4th 1292, 1320.) The Legislature's preferred permanent plan, moreover, is adoption. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.)
"Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jayson T. (2002) 97 Cal.App.4th 75, 84-85, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 414.) We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) We presume the juvenile court's order is correct and consider the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of all reasonable inferences and resolving all conflicts in support of the juvenile court's order. (In re I.W. (2009) 180 Cal.App.4th 1517, 1525.)
In making its determination as to whether a child is adoptable, the juvenile court "must focus on the child, and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family." (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) To find that a child is adoptable, "[i]t is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.' " (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Nonetheless, " '[a] prospective adoptive parent's . . . interest in adopting is evidence that the child's age, physical condition, mental state, and other matters relating to the child are not likely to discourage others from adopting the child.' " (In re I.W., supra, 180 Cal.App.4th at p. 1526; accord, In re Sarah M., at p. 1650.) "[I]n some cases a minor who ordinarily might be considered unadoptable [because of] age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (In re Sarah M., at p. 1650.) "Conceivably, there could be some legal impediment to adoption by a prospective adoptive parent that, in turn, might preclude reliance on this parent's interest as a basis for an adoptability finding. [Citation.] Or, there could be facts that contraindicate adoptability notwithstanding the parent's interest. . . . Absent such an impediment or evidence, [however], it follows that the foster parents' interest in adopting [a child] is sufficient to support the juvenile court's finding of general adoptability." (In re I.W., at pp. 1526-1527.) It is not necessary in such a case that there be any evidence of a home-study approval for the foster parents, or even evidence of any back-up plan in case the prospective adoption fails. (Id. at p. 1527.) " '[I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because "it is likely" that that particular child will be adopted.' " (In re K.B., supra, 173 Cal.App.4th at p. 1293, italics added.)
The concepts of "general" adoptability and "specific" adoptability that have developed in the case law (see, e.g., In re Brandon T., supra, 164 Cal.App.4th at pp. 1409-1410; In re A.A., supra, 167 Cal.App.4th at p. 1313) are, in reality, points on a spectrum. "Not all dependency cases fall neatly into one of two scenarios: one, the availability of a prospective adoptive parent is not a factor whatsoever in the social worker's adoptability assessment; or two, the child is likely to be adopted based solely on the existence of a prospective adoptive parent. These scenarios represent opposite ends on the continuum of when a child is likely to be adopted. However, many adoption assessments that recommend an adoptability finding fall somewhere in the middle. They consist of a combination of factors warranting an adoptability finding, including, as in this case, the availability of a prospective adoptive parent. This is the reality we confront, notwithstanding appellate arguments that assume a child is either generally adoptable without regard to a prospective adoptive parent or specifically adoptable based solely on the availability of a prospective adoptive parent." (In re G.M. (2010) 181 Cal.App.4th 552, 562, italics added.)
These principles compel affirmance. Both children were young and, but for Lila's eye condition that her counsel had assured the court would be corrected, both were physically healthy. What is more, five-year-old Lila was developmentally on track, intelligent, reportedly doing "great" in preschool academically and was eager to learn.
To be sure, like many dependent children, Lila and Joel also had their challenges. Two-year-old Joel's language development was behind, and he also had experienced difficulty in his head start program with biting episodes. And Lila, in particular, had behavioral issues stemming from her abusive childhood that been a challenge for some of her prior foster parents to deal with, and had been diagnosed with PTSD, ADHD, and reactive attachment disorder. Yet it also is the case that Lila's behavior problems were at their height, necessitating medication, after visits with Cindy. And several weeks before the hearing, her psychiatrist reported she had improved after having been placed on medication, though she was still having difficulty with hyperactivity and inattention. The mere fact a dependent child has experienced emotional or behavioral issues, as many do, or has a diagnosis for which psychotropic medication has been prescribed, is not in and of itself an obstacle to finding the child is adoptable. There is no one-size-fits-all approach to a determination of adoptability; each child's circumstances are of course unique. (See In re Michael G. (2012) 203 Cal.App.4th 580, 585, 589-593 [seven-year-old found adoptable despite history of aggressive and defiant behavior, severe tantrums, and numerous placements, who experienced nightmares and bed-wetting after visits from mother suspected of physically abusing him]; In re I.W., supra, 180 Cal.App.4th at pp. 1524, 1525-1527 [ten-year-old with PTSD, ADHD, a learning disorder and a history of severe behavioral problems found adoptable]; In re A.A., supra, 167 Cal.App.4th at pp. 1312-1313 [three-year-old and four-year-old siblings diagnosed with attachment disorders, who were aggressive with each other and required a high level of parental intervention found adoptable]; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1558, 1563 [seven-year-old diagnosed with ADHD who was in therapy and for whom psychotropic medication had been recommended found adoptable].)
The record does not contain any details about the circumstances or duration of her prior placements.
Furthermore, to the extent some of the children's challenging behaviors persisted, such as Lila's aggression and defiance and Joel's biting, the juvenile court could reasonably have concluded (and presumably did) that was due at least in part to the children having lived for the past year with a foster parent who refused to allow them any support services in the home, and who herself was experiencing stress, was inconsistent in her parenting, lacking in routine and, according to the adoption specialist, didn't provide a home environment for the children that was "as good as what we would have wanted."
The evidence also shows that after less than two weeks with their new caregivers, both children were already exhibiting signs of progress. The Agency's social worker reported that Lila "responds well" when her new foster mother tells her to stop and listen; and the state adoption specialist testified that Lila was affectionate with her new foster mother, made eye contact with her, sits with her and seeks hugs which were all "positive aspects." She told the court Joel bonded quickly with his new foster father, and was laughing and joyous in the new household. After moving into their new home, Lila enjoyed riding a school bus for the first time. And Joel had been able to remain in preschool every day without incident. The fact that the children's behavioral issues were diminishing while "in the care of a stable, nurturing and attentive caregiver . . . permits the reasonable inference that an equally dedicated adoptive parent could manage [their] behaviors without difficulty." (In re Michael G., supra, 203 Cal.App.4th at pp. 592-593; see also In re A.A., supra, 167 Cal.App.4th at pp. 1312-1313 [affirming finding of adoptability "[g]iven the children's positive attributes, the progress they were making in overcoming their behavioral and emotional problems, as well as the current and former caregivers' willingness to adopt them"].)
The fact, too, that a particular committed couple had been located who wished to pursue adoption, knowing of the children's challenges, is substantial evidence of their adoptability. (See In re I.W., supra, 180 Cal.App.4th at p. 1527; In re A.A., supra, 167 Cal.App.4th at pp. 1312-1313; In re Brandon T., supra, 164 Cal.App.4th at pp. 1409-1411.) Although the children had lived in their new foster home for less than two weeks by the time of the permanency planning hearing, a child may be found adoptable even if not yet placed in a potential adoptive home. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649; see, e.g., In re Carl R. (2005) 128 Cal.App.4th 1051, 1059-1068 [upholding termination of parental rights for gravely disabled child who required total medical care for life, residing in children's convalescent hospital at time of permanency planning hearing].) It therefore follows that a finding of adoptability does not depend on any particular length of time a prospective adoptive parent has welcomed a child into their home. The fact that Lila and Joel had been acclimating to their new foster home for only two weeks certainly did not "contraindicate adoptability." (In re I.W., at pp. 1526-1527, italics added.)
It is unnecessary for us to address whether there is any potential legal impediment to the couple's eligibility to adopt (see In re Sarah M., supra, 22 Cal.App.4th at p. 1650), because Cindy neither raised this issue below (see In re G.M., supra, 181 Cal.App.4th at pp. 563-564 [issue held forfeited]) nor raises that question on appeal. At any rate, the record discloses there is no legal impediment. The children's new foster parents were more than 10 years older than the children (see Fam. Code, § 8601, subd. (a)); the children's consent to adoption is not required because they are under 12 years of age (see id., § 8602); and both spouses were committed to the potential adoption, meaning they both quite obviously consented (see id., § 8603).
The juvenile court, moreover, did not find the children adoptable based solely on their new foster parents' interest in adopting them. Another significant factor was the speed with which a new placement had been found for them—in just 15 days, which is considerably shorter than the 180 days the law gives for "difficult to place" children (see § 366.26, subd. (c)(3)). The juvenile court recognized the children "have their issues," but it found they are "pliable enough and happy enough and joyful enough" to have found a new adoptive placements "fairly quick[ly] and fairly eas[ily]." The juvenile court also found the children were "moving in a positive direction" with their current foster parents, and had a bond. And quite apart from these express oral findings, the court presumably credited the state adoptions worker's testimony that DSS has successfully placed many child victims of physical abuse for adoption, including children with issues similar to Lila's, as well as her ultimate opinion that there is no reason why these children should not be adopted. In short, we conclude based on the totality of this record there is substantial evidence both children are adoptable.
Cindy contends the court's finding that a new placement had been found "fairly quickly and fairly easily" is not supported "by the weight of the evidence," because the state adoptions worker testified that if the current placement failed she would need to look out of the area for a skilled home. We do not reweigh evidence on appeal. In any event, the finding was amply supported. A new placement had been found quickly: in 15 days. Furthermore, the state adoptions worker did not testify she necessarily would have to look outside Del Norte County for an adoptive family if the children's current placement did not work out for some reason; she testified DSS "may" have to do so. Due to the children's unprecedented (in her experience), eleventh-hour change of placement, the record in fact is silent as to how many other prospective adoptive families there might actually be for these children. Once this couple was located on the eve of the permanency planning hearing, efforts to find another potential adoptive family ceased and, it appears, the Agency's and DSS's focus shifted to transitioning the children to their new foster home and evaluating the children in that setting for purposes of the upcoming hearing.
Cindy contends the court's finding that the children had a bond with their new foster parents also is not supported by the evidence. Again, we disagree. The Agency's social worker told the court Joel bonded quickly with the new foster father, describing him as laughing for the first time ever. Although the state adoptions worker testified she hadn't personally observed bonding during her two home visits, her written adoption assessment, which was based also on interviews with the foster parents, stated that the two children "are beginning to form a secure and affectionate relationship" with the couple, that a "secure and stable parental relationship is in the process of developing," and that removing the children from the current home would be seriously detrimental to the children. Likewise, the Agency noted in its report that "the prospective adoptive parents have made a connection with the children," a characterization that reasonably implies the connection was mutual.
Cindy's arguments to the contrary are unpersuasive. For example, she stresses that the children had had multiple placements. But unfortunately that is often true; such a child nonetheless may be found to be adoptable. (See, e.g., In re Michael G., supra, 203 Cal.App.4th at p. 590 [seven-year-old who "had never had a stable home"]; In re I.W., supra, 180 Cal.App.4th at pp. 1523, 1525-1527 [three siblings placed together in three foster homes in 15 months].) Cindy also points to the fact that the children's former foster parent asked after a year that they be removed. But, as noted, that individual had other personal issues going on in her life, and there also were real doubts about her capabilities given her parenting style, her stress level, defensiveness, the number of other children in her household, and her refusal to accept any in-home help for the children. Cindy also stresses the state adoptions worker's testimony that, "I think these parents have a lot of potential. I can't say a week and a half going into it it's going to last. I thought the previous placement would last." But that testimony, in isolation, in no way undermines the totality of the evidence that these children are adoptable; it is merely a candid reflection of the fact that social workers are not oracles, nor are courts. Cindy ignores the state adoption worker's follow-on explanation ("sometimes things come up in people's lives that we can't foresee"), her familiarity with other children who had been adopted despite having been abused to such an extent they too, like Lila, developed reactive attachment disorder and PTSD, as well as her ultimate opinion, based on all of the circumstances, that there was no reason these children should not be adopted. In a nutshell, Cindy "approach[es] the question of the children's adoptability by picking and choosing evidence from the record in support of [her] argument. This is not an approach we may follow on review." (In re A.A., supra, 167 Cal.App.4th at p. 1313.)
In her reply brief, Cindy also attempts to distinguish authorities decided before 2004 on the issue of adoptability as irrelevant. She contends that the section 366.26, subdivision (c)(3) option to order adoption as the permanent plan without terminating parental rights for a child who "has a probability for adoption but is difficult to place for adoption" was enacted in 2004, thus implying that the legal standard for terminating parental rights upon a finding a child "likely . . . will be adopted" (§ 366.26, subd. (c)(1)) has somehow since changed. She is incorrect. The section 366.26, subdivision (c)(3) option has existed since at least 1988, originally codified as section 366.26, subdivision (c)(2) of former section 366.26 in substantially similar form (albeit providing for a more limited period of 60 days, rather than 180, for locating an appropriate adoptive family). (See Stats. 1988, ch. 1075, § 7.)
The only legal authority she cites is In re S.B. (2009) 46 Cal.4th 529, 533, which does not address the date of its enactment.
Finally, Cindy argues that the Agency's report and the adoption assessment report, together, were materially defective in various ways and therefore insufficient to support the juvenile court's findings. (See generally § 366.21, subd. (i)(1).) For example, Cindy's greatest criticisms are that the reports are too cursory in their discussion of the children's mental and physical health needs; according to Cindy, the reports supposedly do not mention Lila's specific mental health diagnoses, that Lila was under psychiatric treatment and on psychiatric medication, and had an eye condition. She also says it is "entirely uncertain" whether the prospective adoptive parents were even aware that Lila was undergoing therapy, was on psychiatric medication and was being seen by a child psychiatrist. Both criticisms are inaccurate. Likewise, she faults the reports for not being "forthright in the assessment that the children were not yet at all bonded," an argument that essentially asks us to reweigh the facts which we may not do. And she complains the reports were too cursory in their discussion of certain subjects (such as their assessment of the prospective adoptive parents' criminal backgrounds and referrals for child abuse or neglect.)
The adoption assessment report by DSS acknowledges Lila's diagnoses for PTSD, ADHD and reactive attachment disorder. And the case plan attached to the Agency's report states, "Lila will attend all scheduled psychiatric appointments with Dr. Singh to discuss her medications and how the medication is affecting her behaviors and sleep." Although Cindy also complains, "[t]here is no information in the record whatsoever about whether she was ever taken to see an ophthalmologist, whether any treatment was or would be required, and what that would consist of," the Agency's report reflects that Lila was being seen for her eye condition: it stated she would "attend all scheduled optometrist appointments in San Francisco and will follow the treatment plan for her eyes."
Drawing all reasonable inferences in favor of the juvenile court's order, there also is substantial evidence the children's new caregivers were aware of the children's mental health needs and Lila's eye condition. The Agency's report states, "The prospective adoptive parents are able to meet the special needs of the children. They are willing and able to have assistance in the home to help them learn how to work with the children and their behaviors . . . . The prospective adoptive parents have already participated in a Child Family Team meeting, are aware of appointments for medical and psychiatric and are more than willing to make sure the children receive the necessary services." (Italics added.) One can reasonably infer the children's medical and mental health needs were discussed at the "child family team meeting." It also is reasonable to infer that since the prospective adoptive parents were aware of all "medical and psychiatric" appointments they also were aware of the purpose for the appointments (all the more reasonable, because one of the prospective adoptive parents is herself a nurse). The report also makes clear the prospective adoptive parents knew the children were in therapy: it states the couple "want[s] to work with the [Agency], Remi Vista and Regional Center to ensure the children and they receive assistance to work through the children's behaviors," Remi Vista being the organization where the children were receiving weekly therapy and the "Regional Center" where Joel was enrolled in a head start program.
The Agency's report stated the parents, both of whom worked at nearby state prison, had "no criminal history" and "no child welfare history." It is unclear what further information Cindy contends was necessary on this score.
Although we will not decide whether the reports failed in any respect to comply with statutory requirements because Cindy did not object below to the reports on any ground, the lack of an objection does not preclude her from challenging the sufficiency of the evidence of adoptability. (See In re A.A., supra, 167 Cal.App.4th at p. 1317.)
In assailing the written reports, Cindy likens this case to In re Valerie W. (2008) 162 Cal.App.4th 1, which reversed a finding of adoptability for lack of substantial evidence because of major deficiencies in an adoption assessment report. Unlike here, however, the assessment report in Valerie W. was the only evidence presented at the section 366.26 hearing, and it "failed in most respects" to comply with statutory requirements. (See Valerie W., at pp. 7, 13.) Chief among its deficiencies, it failed adequately to assess the medical condition of one of the children who had serious health problems (i.e., anemia, seizures, gastrointestinal problems as well as delayed speech development), and was undergoing multiple tests to determine the cause of the child's anemia and to rule out a serious genetic or neurological disorder. The report contained no information about any of the test results and no updates were provided to the court at the hearing. (See id. at pp. 5-6.) Without that information, there was no evidence to show the children's identified adoptive parents could meet the children's needs. (Id. at pp. 13-14.) Unlike here, "[t]he court and the parties were not informed of [the child's] diagnosis or possible diagnoses, prognosis or any needs for treatment or special care." (Id. at p.15.) There also were significant questions about the circumstances of the prospective adoptive parents, and the record was unclear as to whether the court even was aware that two adults wished to jointly adopt the children rather than just one of the adults. (See id. at pp. 13-14, 15; see also In re Michael G., supra, 203 Cal.App.4th at p. 592 [distinguishing Valerie W.].) There are no similar unanswered questions in this case about Lila, Joel, or their prospective adoptive family.
Here, by contrast, the totality of the evidence, including information contained in the reports we have recounted as well as information placed on the record at the hearing and the testimony of the state adoptions worker, was sufficient to support the juvenile court's adoptability finding. (See, e.g., In re Michael G., supra, 203 Cal.App.4th at pp. 585, 587-593 [affirming finding that seven-year-old with history of behavioral issues was adoptable despite absence of a current assessment of child's emotional and behavioral status or the results of a court-ordered psychological evaluation]; In re Crystal J. (1993) 12 Cal.App.4th 407, 413, disagreed with on another ground by In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
II.
Cindy's Contention the Juvenile Court Should Have Continued the Hearing for Six
Months Because the Children Were Difficult to Place for Adoption Furnishes No
Ground for Reversal.
Finally, we turn to Cindy's position that the appropriate course of action was for the juvenile court to have continued the matter for 180 days under subdivision (c)(3) of section 366.26 rather than terminate parental rights immediately. On the basis of this record and the briefing we have before us, we reject that contention.
To start with, we have serious concerns that this entire issue was forfeited in the juvenile court. Cindy's counsel never argued below that these children qualified as "difficult to place for adoption" and that "there is no identified or available prospective adoptive parent" within the meaning of section 366.26, subdivision (c)(3). Nor did he clearly and expressly ask the juvenile court to proceed under section 366.26, subdivision (c)(3) at the completion of all of the evidence. (See §366.26, subd. (c)(3).) On appeal, Cindy says her counsel "agreed" with the recommendation made by the Agency's counsel, at the outset of the hearing, to " 'utilize the section of 366.6 [sic] that allows the court to order a permanent plan of adoption without terminating the parental rights,' " and then to either " 'come back and finalize the adoption' " in six months or " 'convert it to a guardianship.' " But that mischaracterizes the record, which we have quoted above. At most, Cindy's counsel did not object to the initial suggestion ("That sounds reasonable"). Furthermore, the record at that point was not complete. At the end of the hearing, after additional information and evidence had been presented to the court, the Agency's counsel reversed course and recommended terminating parental rights. At that point, with the record fully developed, Cindy's counsel did not, as she now contends, "argue[] in favor of utilizing section 366.26, subdivision (c)(3)." Her counsel merely offered some unclear commentary ("I think since they are now prospective, adoption would follow subdivision (f) of 366.26. I forget the subdivision") and then suggested, vaguely, that the Agency's prior suggestion "might be more prudent the court at this time [sic], simply because the parents have not had these children that long and Lila does show lots of problems for someone so young." (Italics added.) His vague, equivocal comments did not put the court on notice of Cindy's position now that the only appropriate course of action was to proceed under section 366.26, subdivision (c)(3).
Second, Cindy's discussion of the section 366.26, subdivision (c)(3) option in her opening brief is so cursory we cannot deem it a cognizable issue. On pain of waiver, appellate arguments must be separately captioned under an appropriate argument heading (see Cal. Rules of Court, rule 8.204(a)(1)(B); Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294; Lester v. Lennane (2002) 84 Cal.App.4th 536, 586, fn. 28) and supported by reasoned argument and citations to authority (see Cinema West, LLC v. Baker (2017) 13 Cal.App.5th 194, 218-219; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303). The legal argument section of Cindy's opening brief, though, contains just three references to section 366.26, subdivision (c)(3), no legal argument heading concerning the issue, and no legal analysis of that subdivision. Instead, Cindy's arguments and analysis of the section 366.26, subdivision (c)(3) option are relegated to her reply brief, which is improper. (See Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1426; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765.)
At page 20 of her opening brief, she quotes the provision prefaced by the observation that it "was clearly intended to give the court a remedy where adoption is uncertain." At page 22, citing or discussing no legal authority, she asserts that "[t]he children, particularly [Lila], fit the definition of 'difficult to place' set forth in section 366.26, subdivision (c)(3), because of the presence of 'a diagnosed medical, physical, or mental handicap.' " And at page 23, again citing no legal authority, she asserts that because there was no substantial evidence that the children were adoptable and could find another home quickly and easily if their current placement failed, "the court erred in terminating parental rights . . . [and] should have proceeded under section 366.26, subdivision (c)(3)" and ordered adoption as the permanent plan and set the matter over for six months without terminating her parental rights. That is the full extent of her discussion of the issue in her opening brief.
Third, section 366.26, subdivision (c)(3) did not apply. On its face, that provision allows a juvenile court to select adoption as the permanent plan for difficult-to-place children and put the matter over for up to six months so that efforts may be undertaken to locate an appropriate adoptive family only where "there is no identified or available prospective adoptive parent" at the time of the permanency planning hearing. (§366.26, subd. (c)(3).) As the Agency points out, however, there were identified prospective adoptive parents here: the children's new foster parents who, by all accounts, were committed to moving forward with an adoption even though time had been short. Even Cindy acknowledges in her opening brief that "[t]his new home was designated as a prospective adoptive home," citing to the Agency's status report. The Agency's report stated at page 5, "prospective adoptive parent[s] [have] been identified" for the children, and what then followed was the Agency's description of the couple.
For the first time in her reply brief, Cindy contends the children's new caretakers do not qualify as prospective adoptive parents, because they had not lived with the children for six months as required by subdivision (n) of section 366.26. Cindy has forfeited this issue, however, both in the trial court and on appeal. As noted, Cindy's counsel did not contend below the children's new foster parents were not prospective adoptive parents, much less cite or refer to section 366.26, subdivision (n); nor did he object to the Agency's characterization of them in its status report as prospective adoptive parents. So this issue has been waived. (See Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 148, 150.) Quite the contrary, Cindy's counsel affirmatively characterized the children's new foster parents as prospective adoptive parents, when at the end of the hearing he told the juvenile court, "I think since they are now prospective, adoption would follow subdivision (f) of 366.26. I forget the subdivision." (Italics added.) So any error in the juvenile court treating them as such was also invited. As this court has explained, "an appellant 'cannot complain of error [it] personally "invited." In other words, one whose conduct induces or invites the commission or error by the trial court is estopped from asserting it as a ground for reversal on appeal.' " (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000; see, e.g., In re G.P. (2014) 227 Cal.App.4th 1180, 1193-1197.) On appeal, moreover, this question was not raised until Cindy's reply brief, leaving the Agency no opportunity to reply. That constitutes yet another forfeiture. (See Mt. Hawley Ins. Co. v. Lopez, supra, 215 Cal.App.4th at p. 1426; Reichardt v. Hoffman, supra, 52 Cal.App.4th at pp. 764-765.) In these circumstances, we decline to exercise our discretion to decide whether the children's new foster parents could not be prospective adoptive parents for purposes of applying section 366.26, subdivision (c)(3) unless the children had lived with them for six months.
Section 366.26, subdivision (n) states in relevant part: "Notwithstanding Section 8704 of the Family Code or any other law, the court, at a hearing held pursuant to this section or anytime thereafter, may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. In determining whether to make that designation, the court may take into consideration whether the caretaker is listed in the preliminary assessment prepared by the county department in accordance with subdivision (i) of Section 366.21 as an appropriate person to be considered as an adoptive parent for the child and the recommendation of the State Department of Social Services, county adoption agency, or licensed adoption agency.
"(2) For purposes of this subdivision, steps to facilitate the adoption process include, but are not limited to, the following:
"(A) Applying for an adoption homestudy.
"(B) Cooperating with an adoption homestudy.
"(C) Being designated by the court or the adoption agency as the adoptive family.
"(D) Requesting de facto parent status.
"(E) Signing an adoptive placement agreement.
"(F) Engaging in discussions regarding a postadoption contact agreement.
"(G) Working to overcome any impediments that have been identified by the State Department of Social Services, county adoption agency, or licensed adoption agency.
"(H) Attending classes required of prospective adoptive parents." (§ 366.26, subd. (n)(1) & (2).)
Cindy's opening brief quotes section 366.26, subdivision (n) but contains no discussion or analysis of that provision, much less any argument that the children's new foster parents do not qualify.
DISPOSITION
The orders terminating Cindy A.'s parental rights concerning Lila A. and Joel A. are affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.